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McGraw v. GEICO General Insurance Co.

United States District Court, W.D. Washington, Tacoma

April 18, 2017

YOLANDA MCGRAW, individually, and as the representative of all persons similarly situated, Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY, Defendant.

          AMENDED ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING PLAINTIFF'S MOTION TO STRIKE AS MOOT

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on Plaintiff Yolanda McGraw's (“McGraw”) motion to remand (Dkt. 19) and motion to strike declarations of Defendant's experts (Dkt. 39). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL HISTORY

         On March 13, 2014, McGraw was involved in a car accident. Dkt. 1, Ex. A (“Comp.”) ¶ 1.8. McGraw's car was damaged, and the repairs cost $8, 140.07. Id. McGraw's car was worth less after it was repaired than before the accident. Id. ¶ 1.10. McGraw had a car insurance policy with Defendant GEICO General Insurance Company (“GEICO”). Id. ¶ 1.9. McGraw sought underinsured motorist coverage under her GEICO policy. Id. GEICO did not compensate McGraw for her car's diminished value. Id. ¶ 1.11.

         On April 17, 2015, McGraw filed a class action complaint against GEICO in Pierce County Superior Court. See id. McGraw claims that GEICO has continuously failed to pay its policyholders' diminished value loss. Id. ¶ 5.1. McGraw seeks to certify the following class:

All GEICO insureds with Washington policies issued in Washington State, where the insureds' vehicle damages were covered under Underinsured Motorist coverage, and
1. The repair estimates on the vehicle (including any supplements) totaled at least $1, 000; and
2. The vehicle was no more than six years old (model year plus five years) and had less than 90, 000 miles on it at the time of the accident; and
3. The vehicle suffered structural (frame) damage and/or deformed sheet metal and/or required body or paint work.
Excluded from the Class are (a) claims involving leased vehicles or total losses, and (b) the assigned judge, the judge's staff and family.

Id. ¶ 5.3. McGraw alleges that the number of class members will be about 2, 586 and the average damages will be about $1, 460 per class member. Id. ¶ 2.4. Based on these numbers, McGraw alleges that the amount in controversy is $3, 775, 560. See Id. McGraw asserts a single breach of contract claim. Id. ¶¶ 6.1-6.5.

         On May 20, 2015, GEICO removed the matter to this Court. McGraw v. Geico Gen. Ins. Co., C15-5336BHS (W.D. Wash.) (“McGraw I”). On September 8, 2015, the Court granted McGraw's motion to remand because GEICO had “failed to establish by a preponderance of the evidence that CAFA's amount in controversy requirement is satisfied in this case.” McGraw v. Geico Gen. Ins. Co., C15-5336BHS, 2015 WL 5228027, at *4 (W.D. Wash. Sept. 8, 2015). On the issue of attorneys' fees, the Court rejected GEICO's argument that attorneys' fees should be included in the amount in controversy under either the Washington Consumer Protection Act or Insurance Fair Conduct Act because neither of these claims was in McGraw's complaint. Id.

         On October 13, 2016, GEICO removed the matter to this Court for a second time. Dkt. 1. GEICO alleges that “[a] sampling of GEICO's records reveals an average of $1, 698.99 per claim with a potential class size including as many as 2734 claims for a total of $4, 645, 038.66 in potential class member claims.” Id. ¶ 22. GEICO also alleges that the class would be entitled to attorney's fees under the Ninth Circuit benchmark for class actions, McGraw's retainer agreement with her attorney, or Olympic Steamship Co. v. Centennial Ins. Co., 117 Wn.2d 37 (1991) (en banc). Id. ¶¶ 23-25.

         On November 14, 2016, McGraw moved to remand. Dkt. 19. On December 5, 2016, GEICO responded. Dkt. 25. On January 6, 2017, McGraw replied (Dkt. 37) and moved to strike the declarations of GEICO's experts (Dkt. 39).[1] On January 23, 2017, GEICO responded to ...


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